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Opinion The GOP spin on gun rights is wrong — morally and legally

The silhouette of an AR-15-style rifle is displayed on signage for a gun store in Yuma, Ariz., on June 2. (Patrick T. Fallon/AFP/Getty Images)

After a new round of well-armed hate crimes and child murder, the congressional process to pass gun regulations remains the harvesting of low-hanging fruit. The minimalist outcome (if there is an outcome) will be advocated under the stirring slogan “better than nothing.”

Which would be true. Any kind of agreement would be good for democracy, demonstrating that the creaking machinery of self-government can still turn. But the triumph of legislative incrementalism is unlikely to feel equal to the real-world provocation: the effect of advanced weaponry on small bodies.

And it will not answer the lingering question: Is the slaughter of innocents the unavoidable price of freedom?

A significant group of Americans believe it is. In a recent CBS-YouGov poll, 44 percent of Republicans agreed that mass shootings are “unfortunately something we have to accept” in a free country. It is the “unfortunately” that gets to me.

This is a case involving unequally distributed peril. For most observers, such misfortune amounts to reading a depressing newspaper article. For the families involved, it means suffering beyond measure and grief beyond relief. Government cannot take all the risk out of life. But is it permissible to “accept” the risk of murder on behalf of other people’s children? Is it moral to make our peace with such evident evil?

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Any consideration of gun regulation in the United States immediately involves a debate about our fundamental law. Through most of American history, the prefatory clause of the Second Amendment — “A well regulated Militia, being necessary to the security of a free State” — determined the meaning of the operative clause, “the right of the people to keep and bear Arms, shall not be infringed.” This made sense in a country where the entire western frontier was ragged and bloody with danger. Every able-bodied man was expected to possess a useful weapon to fight for the security of his state. And at least part of the reason to stay armed was that many people feared and opposed the accumulation of federal power.

The Virginia Constitution made this connection explicit, saying “that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free State; … that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”

The conservative legal revolution of the past few decades has sought to decouple the two clauses of the Second Amendment. The prefatory clause has been dismissed as but one application of the operative clause, which establishes an individual right of gun ownership for purposes of self-defense. Some have called this a conservative application of the evolving Constitution. But since District of Columbia v. Heller in 2008, the Supreme Court has upheld gun ownership as a right, not just as a precondition for the common defense.

Heller overturned D.C.’s prohibition of nearly all handguns, affirming these as the weapons of choice for Americans engaged in self-defense. But the ruling made clear that the Second Amendment does not create an absolute right to gun ownership.

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It is still permissible, Heller states, to restrict the gun rights of felons and the mentally ill. It is still allowable to prohibit the carrying of firearms in government buildings and schools. It is still lawful to ban particularly “dangerous and unusual weapons.” (Sorry, no grenade launchers or guided missiles.) And it is worth noting that since Heller, lower courts have generally upheld the gun restrictions they have considered.

This means that one of the main pro-gun arguments — that reasonable gun restrictions violate sacred, natural rights — is somewhere on the far side of laughable ignorance. The right to keep and bear arms does not mean the right of 18-year-olds to buy assault rifles. Many Republicans seem intent on combining the stability and wisdom of teenagers with military-grade firepower.

This issue is also pregnant with paradox. For years, judicial conservatives have tried to reposition the Second Amendment as protecting an individual right to gun ownership. But now, some MAGA Republicans want to return to the prefatory clause, with a twist.

Like some Jeffersonians, they fear concentrated federal power as a threat to liberty. But what does it mean when Rep. Marjorie Taylor Greene (R-Ga.) refers to the Jan. 6, 2021, attack on the Capitol as a “1776 moment” or embraces the Second Amendment as permission for insurrectionary violence? Does this indicate that the future targets in a MAGA war against tyranny might be police officers and tax collectors, soldiers and FBI agents? Merely playing with such ideas is an invitation to the unstable.

It is past time for Republican politicians to embrace some risk in the cause of life — and end their dance with death.

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